ASSIGNMENT

on

Important grounds of ‘Rule of Law’ in the United Kingdom & Bangladesh.

COURSE TITLE: Law on Good Governance

COURSE CODE: LL.M- 526

SUBMITTED BY

Arif Ahmed
ID No: 232-132-001
SUBMITTED TO

Syeda Nazmur Siha Muna

Lecturer
Metropolitan University, Sylhet.

DEPARTMENT OF LAW

40th BATCH

Metropolitan University, Sylhet.

Contents
Introduction ..................................................................................................................................... 1
Concept of the Rule of Law ............................................................................................................ 1
Rule of Law in United Kingdom .................................................................................................... 1
Modern concept of Rule of Law ..................................................................................................... 2
Dicey Theory of Law ...................................................................................................................... 2
Rule of Law in Bangladesh Constitution ........................................................................................ 4
Rule of Law in Bangladesh ............................................................................................................. 4
Conclusion ...................................................................................................................................... 6
Introduction
One of the basic principles of the English constitution is the rule of law. This doctrine is accepted
in the constitution of U.S.A. and also in the constitution of Bangladesh. Now a days rule of law is
one of the most discussed subjects of developing countries. Developed countries and donor
agencies always instruct the developing countries for sustainable development and good
governance. Actually, sustainable development and good governance mostly depends on the
proper application of rule of law. Laws are made for the welfare of the people, to bring a balance
in society, a harmony between the conflicting forces in society. One of the prime objects of making
laws is to maintain law and order in society, a peaceful environment for the progress of the people.
In true and real sense there is no rule of law in Bangladesh today. Law in Bangladesh follows a
course of selective and discretionary application. Institution and procedures required for ensuring
rule of law also are no effective in the country.

Concept of the Rule of Law

The term 'Rule of Law' is derived from the French phrase 'La Principe de Legality' (the principle
of legality) which referse to a government based on principles of law and not of men. In this sense
the concept of 'La Principe de Legality' was opposed to arbitrary powers1.

One simple formation of the idea of “rule of law; is the idea that society should be ruled by law
not by men, The basis formation emphasize three concept

(a) The legal detriment should only be imposed by law not on basis of personal will or arbitrary
decision of government official,

(b) The government action should be subject to regulation by rules and not to be above the law,
(c) The people should be protected from private violence and coercion.

Rule of Law in United Kingdom

The concept of “Rule of Law“ is the building block on which the modern democratic society is
founded, The term “Rule of Law” is derived from the French Phrase “La Principe de Legality”
which means-(The Principle of Legality) which refers to a Government based on principles of Law
and not of man ,

The concept of “Rule of Law” is very ancient, it is explained in Aristotle’s politics book chapter
iii in England – The Idea that the King is also subject to Laws of the Land has its origin in the
Magna Carta of 1215 by King John, This Magna Carta was the first foundation of Rule of Law,
because this was the document in the world history where for the first time we find a strong protest
against arbitrary punishment,

1
Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern
Book Company: 34, Lalbagh, Lucknow-226001, India, 2001;21

1
In the 13th century Bracton, a judge in the reign of Henry III in a way introduced the concept of
Rule of Law without naming. It as Rule of Law He wrote – “the King himself ought to be subject
to God and the Law, because Law makes him King”

This universal law (or natural law as it is sometimes called) was attributable to God. In the 17th
century, Edward Coke is said to be the originator of concept of Rule of Law – when He said that
the king must be under God and Law and thus vindicated the supremacy of Law over the
pretensions of the executives,

The Charter of English Liberties made a principle absolute that the authority of the king was not
unlimited and arbitrary and the abuse of power might be resisted. Later on during the long struggle
for power between the King and Parliament in the 17th century, the Parliamentary force lastly won
through the Glorious Revolution in 1688 and the supremacy of the Parliament over the King and
all other bodies was assured by the bill of rights 1689. It was now made certain that the King might
be under the law and parliament.

But the credit for developing the concept of rule of law goes to Professor A.V Dicey He was a
British Jurist and Constitutional Theorist. Who in his classic book “Introduction to the study of the
Law of the Constitution” published in the year 1885 tried developing the concept of Rule of Law.

Modern concept of Rule of Law

Dicey’s concept of the rule of law was not accepted fully in England even in 1885. When he
formulated it. Even, Today Dicey’s theory of rule of law cannot be accepted in its totality. Since
the end of Second World War the principle of rule of law has been a matter of universal discussion
and endeavor has been launched to formulate the basic elements of rule of law. In the context of
modern development in the matters of human rights the scope of rule of law has much widened.
After the adoption of the Universal Declaration of Human Rights 1984, the International Bill of
Human Rights, 1976. Other international covenants on human rights and also after the congress of
the International Commission of Jurists also known as Delhi Declaration 1959. It was held in New
Delhi in 1959. Which was later on confirmed at Lagos in 1961, The concept of rule of law was
developed by this Declaration.

Dicey Theory of Law

According to Dicey, the rule of law is one of the fundamental principles of the English constitution
he gave three meanings of the concept of rule of law.

A. Absence of Arbitrary Power or Supremacy of Law

B. Equality Before Law
C. Judge made constitution

2
(a)Absence of Arbitrary Power or Supremacy of Law

Explain the first principle; Dicey states that rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or wide discretionary
power. According to him, a person should be ruled by the law and by the law alone; a man with us
may be punished for breach of law, but can be punished for nothing else.2

(b)Equality before Law

Rule of law, in the second principle, means the equality of law or equal subjection of all classes to
the ordinary law of the land administered by the ordinary law courts. In this sense rule of law
conveys that no man is above the law; that officials like private citizens are under a duty to obey
the same law, and there can be no Special court or administrative tribunal for the state officials.3

(c)Judge made constitution:

To explain the third principles, state that, the right such as right to personal liberty, freedom from
arrest, freedom to hold public meeting are guaranteed by a written constitution; in England, it is
not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen
between the parties.

Criticism of Dicey Theory of Law

As to his first Principle, he says that there would be no arbitrary or discretionary power. But even
in Dicey's lifetime there were both arbitrary and discretionary power in Britain4 such as Preventive
detention, emergency situation. Again, there is a distinction between arbitrary power and
discretionary power which dicey failed to trace5

As to his second principles, dicey says that there should be equality before law and all are amenable
to ordinary courts of the land. But this principle has many exceptions because equality before law
is not possible in every case. The king or the head of the state in other countries are immune from
both criminal and civil action, judges are immune from personal responsibility for their official
acts even if they might have acted beyond their jurisdiction but not knowingly6

As to his third principles, Dicey says that the fundamental right and liberties emanate from judicial
decisions. But this is one-sided view. Because in England people have got many rights through the
law of parliament and charters issued by the monarchs7 i.e Magna Carta (1215)

2
Dicey, A.V. Op. Cit., 350.
3
Diecy, A.V. Ibid, 188
4
Halim, M. A. Op. Cit., 348
5
Halim, M. A. Ibid, 348.
6
Ibid, 349
7
Halim, M.A. Op. Cit., 35

3
Though it has become a fashion to criticize Dicey's theory of rule of law- the three important things
absence of arbitrary power, guarantee of citizens right and the equality before law over which he
made emphasis are universally recognized as the core of traditional theory of rule of law.

Rule of Law in Bangladesh Constitution

Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of
law. Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance
with law, is the inalienable right of every citizen, wherever he may be and of every other person
for the time being with in Bangladesh, and in particular no action detrimental to the life, liberty,
body, reputation or property of any person shall be taken except in accordance with Law.

18 fundamental rights have been guaranteed in the constitutional arrangement for their effective
enforcement has been ensured in Articles 44 and 102. Article 7 and 26 impose limitation on the
legislature that no law which is inconsistent with any provision of the constitution can be passed.

In accordance with Article 7, 26 and 102(2) of the constitution the Supreme Court exercise the
power of judicial review whereby it can examine the extent and legality of the actions of both
executive and legislative and con declare any of their actions void if they do anything beyond their
constitutional limits. Right to be governed by a representative body answerable to the people has
been ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution8.

Rule of Law in Bangladesh

Laws, rules and procedures framed under them exist to cover every walk of our national life,
though there may be parities in number and shortcomings in scope. Our constitution contain
plethora of laws while institutions like courts, ministries and departments have been set up to
dispense justice and 8 decisions in accordance with the present state of the rule of law revels the
riddle of having a body of law and at the same time not having it. It is like a person who is brain
dead. Some aspects of the rule of law in our society and polity should be mentioned as under:

1. Access to law as well as equality before it, are reserved for only those who are privileged.
For the rest of the population, more or less the Hobbsian law of nature prevails. They are
the helpless victims of as unjust society that sets great story by privileges. Second, all
government in this country since the fall of Ershad have claimed that there is independence
of judiciary. The claim is only partially true, while the higher courts enjoy a certain measure
of independence, the lower courts are under the direct control of the law ministry. The
judges look up to the Ministry for everything infect they are obliged to. The principle of
separation of judiciary from executive is being violated in two ways –

8
Halim, M.A. Op. Cit. 351

4
 a) Magistrates are performing dual function of both executive and judiciary which is
not desirable in the interest of justice.
b) The service of district and session judges, their transfer, promotion etc. are
controlled not by the supreme court but by the law ministry.
2. The government of Bangladesh continued to use the Special Power Act of 1974 and section
54 of the criminal code which allow for arbitrary arrest and preventive detention, to harass
political opponents and other citizens by detaining them without formal charges.
3. The very principle that law should take its own course requires that in investigation and
preparation and submission of the charge sheet, the investigating agency should be free
from, encumbrances influences and threats of all kinds. Unfortunately, that situation does
not obtain in today's Bangladesh. In recent years a large number of political killings have
taken 9 place. The national dailies have carried the stories of all the gruesome murders and
the whole nation has been out raged. What is however deplorable is that in most of these
highly publicized cases the culprits have not been brought to justice. The reason is not far
to seek. It is the interference by high ups in the political ladder.
4. Another aspect of rule of law relates to the limits of law-making power of the parliament
itself. Our constitution quite rightly declares the people as the repository of all power and
they use it through their elected representatives. However, the question arises whether the
parliament can make laws curbing the democratic rights the people, which are generally
considered as unreasonable. The special power Act of 1974 the public safety Act passed
former Awami Liege Government etc. which are used to put political opponents behind the
bars, deserve special mention9
5. Rule of law postulates intelligence without passion and reason free from desire in any
decision regarding matters concerned with governance. In our society, the principle is
being ignored on many grounds as quotas for political activists by the name of honor to
freedom fighters, special provision for individual security etc.
6. Police is no doubt a very powerful institution for the endorsement of the rule of law. But
in Bangladesh, the police has never been friendly with the public. The police serve the
government and enjoys, in exchanges, the freedom to act arbitrarily and in the material
interests of its own members.
7. Ordinance making power can be supported only in emergency situation like national crisis,
national clamity severe economic deflection etc. demanding for immediate legislative
actions. But article 93 of the constitution allows the president to promulgate ordinances
anytime during the recesses of parliament session. On the other hand Article 141(A)
empowers the president to declare emergency whenever he wishes. By declaring
emergency in peace time the government can suspend fundamental rights and suppress the

9
Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M.
Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 356.

5
 opposition movement. This mounts to avowed arbitrary exercise of power on the part of
the government which is contradictory to the concept of rule of law10.
8. Another disgusting aspect of our judicial system is that there is the charge of corruption
against our judiciary. Moreover, justices oftener than not, a costly commodity in our
country. The poor people could not reach before the judges only because of mobility to
meet the charge required for going through the complicated process of litigation. Thus,
they prefer injustice than fatigue.
9. In order to provide quick relief and avoid lengthy proceedings of litigation providing for
the creation of Administrative Tribunal particularly for service matters which needs special
treatment and experience is not undemocratic something. But this tribunal has been kept
outside the writ jurisdiction of the High Court Division under article 102(5). Also it has
been kept out of the supervisory jurisdiction of the High Court Division. This provision
has therefore, been contradictory to the concept of integrated judicial system and also
contrary to the concept of independence judiciary11.

Conclusion

Above discussions clearly shows that the present condition of rule of law in Bangladesh is not
satisfactory. However, the proposed measures for overcoming the shortcomings of rule of law also
are not final but these are fundamental. Independent and particular policy for rule of law is a must
for overcoming the ambiguity and anomalies in rule of law. After all, government must be
committed to ensure the security of life and property of the people, protection of individual rights
and the dissention of justice on the basis of the equality and fairness. On the other extreme, the
opposition, civil society and social groups and organizations also have the moral obligations to
help and cooperate with the government in this juncture12

10
Ibid
11
Ibid
12
Md. Awal Hossain Mollah, RULE OF LAW IN BANGLADESH: AN OVERVIEW(N/A) p.10